Do Bain SEC documents suggest Mitt Romney is a criminal?

"Romney and Bain claim that he was not involved with Bain, but Bain and its portfolio companies in their required filings under the Securities Exchange Act continuously certified to the Securities and Exchange Commission say precisely the opposite — asserting without qualification that he was a controlling person, fully in charge of Bain, under the Federal securities law. Under normal circumstances, the question of the truth of this representation would result in an investigation by the SEC into possible criminal, as well as civil, violations of the law."

— Robert Bauer, Obama campaign counsel, July 13, 2012

There is a journalistic convention that appears to place great weight on “SEC documents.” But these are public filings by companies, which usually means there are not great secrets hidden in them. The Fact Checker, in an earlier life covering Wall Street, spent many hours looking for jewels in SEC filings.

As we wrote yesterday, we are standing with our assessment that Mitt Romney left the helm of Bain Capital in 1999, when he departed to run the Salt Lake City Olympics. The date is important because some questionable investments by Bain took place between 1999 and 2002, when he ran for governor. But a Boston Globe article on Thursday raised new questions about that timeline, citing SEC filings, and the Obama campaign jumped to take advantage of it.

Despite the furor, we did not see much new in the Globe article. We had examined many SEC documents related to Romney and Bain in January, and concluded that much of the language saying Romney was “sole stockholder, chairman of the board, chief executive officer, and president” was boilerplate that did not reveal whether he was actually managing Bain at the time. (For instance, there is no standard definition of a “chief executive,” securities law experts say, and there is no requirement for anyone to have any responsibilities even if they have that title.)

The one thing new we saw in the Globe story was the assertion that “Romney’s state financial disclosure forms indicate he earned at least $100,000 as a Bain ‘executive’ in 2001 and 2002, separate from investment earnings.” But then we realized we had already reviewed those documents in January. The 2001 form describes him as a “former executive” (see page 1 of form A-5) — the campaign says this was retirement pay — but the 2002 form says “executive.” So either you believe he suddenly rejoined the firm, after leaving it, or someone made a typo.

Romney’s sudden departure from Bain had left the partnership in flux, in fact almost breaking up the firm, and a final resolution was not reached until he ended his Olympic sojourn and decided to run for governor. At that point, he signed retirement papers that set his departure date as February 1999, the month he left for the Olympics.

Fortune magazine on Thursday reported that it had obtained the offering documents for Bain Capital funds circulating in 2000 and 2001. None of the documents show that Romney was listed as being among the “key investment professionals” who would manage the money. As Fortune put it, “the contemporaneous Bain documents show that Romney was indeed telling the truth about no longer having operational input at Bain — which, one should note, is different from no longer having legal or financial ties to the firm.”

Let’s also not forget that Massachusetts Democrats tried to keep Romney off the ballot in the 2002 governor’s race on the grounds that he had been living and working in Utah, even paying taxes there, and thus had failed to meet the requirement to have lived seven consecutive years in Massachusetts. The effort failed, but not after Democrats waged an expensive, months’ long battle to prove he worked so much on the Olympics that he was in effect a citizen of Utah. (More on this below.)

Still, the Obama campaign has raised a very serious charge of potential criminal behavior. Does it have much credibility?

The Facts

One of the SEC documents in question that has received attention in recent days is a Form 13D that was posted by Talking Points Memo. A Form13D is filed when an investor or investment group announces that it has acquired more than five percent of the company.

In this case, Bain had merged a juice producer it had bought in 1998 — Fresh Samantha — with a rival called Odwalla. In return, a Bain investment fund received 3,612,122 shares in the new company. When Odwalla was sold to Coca-Cola in 2001, the Bain investment group made $55 million, more than four times its initial investment.

Romney is not mentioned in the filing Odwalla made at the time of the sale; instead, two Bain executives who sat on the board are listed. Romney is listed in the documents involving the investment fund that made the filing, Bain Capital Fund VI, L.P., which was formed prior to his departure for the Olympics.

We consulted with securities law experts, with many years of experience with these forms. One expert examined this document at our request. He suspected that someone had simply duplicated a filing that had been made many times before, though he acknowledged, “it looks inartful in retrospect.” He pointed out that the titles are basically meaningless, that someone can be listed as a chief executive and actually have no responsibilities whatsoever.

The SEC can bring civil charges for discrepancies in filing 13D documents, but as far as we can tell none has ever been brought for someone listing a misleading title. The more common 13D investigation involves a situation in which investors secretly act in collusion to acquire more than five percent of the stock, but fail to disclose that — or if investors do not make a timely disclosure that their holdings have fallen below five percent.

Moreover, there is a five-year statue of limitations, though the clock could start from when the SEC becomes aware of the matter. But 12 years have passed since the filing in question. Bringing in a federal prosecutor to examine criminal charges is even a bigger stretch.

Romney often did not sign the SEC documents. In the Odwalla case, for instance, the filing was signed by someone named Mark E. Nunnelly, a Bain managing director.

These few filings may just represent the winding down of affairs. Or some might think there is something more nerfarious going on. But, remember, when Romney decided to run for governor in 2002, he received a retirement package that was dated Feb., 1999. (In effect, as of that date, he became an investor in Bain, not a partner.) If he had been working hard on these transactions, it would be strange for him to not demand payment for his services.

We readily admit that there is grey area about Romney’s involvement with Bain in the 1999-2002 period, because his future post-Olympics role had not been settled and the future of Bain Capital was in flux. Some have seized on the SEC documents as evidence, but we think there are two stronger pieces of evidence that trump these random filings.

Indeed, if someone wanted to make a criminal case, why quibble with ancient SEC documents? In 2011, Romney, as a presidential candidate, filed a public financial disclosure form, under pain of perjury, that stated:

“Mr. Romney retired from Bain Capital on February 11, 1999 to head the Salt Lake Organizing Committee. Since February 11, 1999, Mr. Romney has not had any active role with any Bain Capital entity and has not been involved in the operations of any Bain Capital entity in any way.”

You can see Romney’s signature, on the first page, in which he states: “I certify that statements I have made on this form and all attached schedules are true, complete and correct to the best of my knowledge.” If Romney lied on this form, that would be a felony.

That filing would seem to trump these SEC documents. Moreover, there is another document — the 2002 Massachusetts Ballot Law Commission report that certified that Romney could run for governor. The findings in this report were the result of weeks of testimony and investigation. We have embedded the report below.

The report included these findings of fact, adopted unanimously by the Commission, made up of representatives of both parties:

“The Respondent was employed in Massachusetts from 1975 until 1999.”

“On February 11, 1999, the Respondent went to Utah to take the position of Chief Executive Officer (CEO) for the Salt Lake Organizing Committee of the 2002 Winter Olympic Games, a non-profit organization burdened by scandal and fiscal crisis.”

“On or about February 11, 1999, the Respondent became an employee of the Salt Lake Organizing Committee for a fixed term of three years. While so employed, the Respondent worked, on average, over 12 hours per day, 6 days per week.”

The report also stated: “The Respondent remained actively employed at Bain Capital until January 1, 1999, at which time he left to take the position of President and Chief Executive Officer of the Salt Lake Organizing Committee for the 2002 Winter Olympic Games.”

The report showed that Romney remained on the board of three companies, two of which had Bain connections — Staples and LifeLike Co. The report said he returned to Massachusetts “to attend meetings at Staples,” but does not mention that he attended any meetings at Bain, even as it provides a long list of social events that brought him back to Massachusetts. One would think that if Romney was trying to prove continued links to Massachusetts, he would have emphasized he kept doing work for Bain.

In other words, an official state investigation concluded that Romney no longer worked at Bain as of early 1999, and also was working “12 hours a day, six days a week” on the Olympics from 1999 to 2002. That also would seem to trump the SEC filings.

Bauer, in an email, provided this statement:

“Every 1934 Act filing is subject to the requirement that it be truthful, and are subject to potential civil and criminal charges. For example, Form 13D is intended to alert investors that a person or persons has a 5% position and what their intentions may be. Whether or not Mitt Romney will still active in Bain would be without doubt a material fact that an investor would want to know. No securities lawyer would say otherwise. Civil charges can be solely for the purpose of setting the record straight, while criminal referral by the SEC to the Department of Justice is typically for cases where someone knowingly and intentionally filed a false 13D. Whether a case is civil or criminal depends on the facts developed through investigation.”

The Pinocchio Test

The Obama campaign is blowing smoke here.We realize that Bauer gets to the word “criminal” by mentioning “investigation,” but that distinction might be lost on most listeners.

Meanwhile, the weight of evidence suggests that Romney did in fact end active management of Bain in 1999. He stated that in a federal disclosure form he signed, under threat of criminal penalties. He said he was a “former employee” in a state disclosure form. A state commission concluded 10 years ago that he did, indeed, leave Bain in 1999. Investors in Bain funds were told he was not part of the management team.

The SEC documents, especially the ones Romney signed, do raise some questions. One can certainly argue that because Romney did not fully extricate himself from Bain till after his Olympic sojourn ended, he should bear some responsibility for what happened in that period. But that is an entirely different matter than suggesting that he is a potential criminal. It is more of a PR problem, which the Obama campaign is trying to exploit to build a larger case that Romney is secretive.

We were tempted to award this claim Four Pinocchios, but the documents with his signature leave some room for inquiry. But, overall, they shrink in importance to the other evidence cited above. (Our colleagues at FactCheck.Org also reaffirmed their similar conclusion.)

Still, if the Obama campaign wants to put its money where its mouth is, it should immediately lodge a complaint about Romney’s financial disclosure form, filed just last year, rather than try to mislead people about potential violations in relatively unimportant SEC documents.

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